DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 808-19 
Ref: Signature Date 

Dear

This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 27 February 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, a 13 September 2019 Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations, and policies.  On 25 June 2019, the Board wrote you requesting additional medical or clinical evidence from you in support of your claim, and received no response after 60 days.  The AO was provided to you on 13 September 2019, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration.
 
Regarding your request for a personal appearance, the Board determined that a personal appearance by you with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered this case based on the evidence of record. 

You enlisted in the Marine Corps on 7 July 1981. As part of your enlistment paperwork, you disclosed prior use of marijuana.  In April 1983, you were medically evaluated and prescribed Antabuse following two alcohol-related incidents, both of which included emergency room visits for treatment following altercations when you had consumed alcohol.  On 3 May 1983, you received non-judicial punishment (NJP) for assault and drunk and disorderly conduct in the barracks.  On 1 December 1983, you received a second NJP for the wrongful use and possession of marijuana.  On 6 January 1984, at a special court-martial (SPCM), pursuant to your pleas, you were found not guilty of unauthorized absence and two specifications of violation of a base order, but guilty of drunken operation of a vehicle against the flow of traffic (and crashing into a signpost and guardrail) aboard Camp Lejeune, and of breaking restriction. You were awarded 60 days of confinement, forfeitures of pay, and to be discharged from the naval service with a bad-conduct discharge (BCD).  Your pre-trial confinement from 13 December 1983 to 6 January 1984 was credited towards your sentence.  On 1 March 1984, the convening authority (CA) approved your sentence as adjudged. On 1 April 1984, you were placed on involuntary appellate leave to await the result of your appellate review. 

On 5 April 1984, the Naval Clemency and Parole Board (NCPB) reviewed your case and granted no clemency.  The NCPB found insufficient justification for the reduction or alteration of your court-martial sentence.  On 30 April 1984, a three-judge panel on the Navy-Marine Corps Court of Military Review (CMR) affirmed the findings of guilty and sentence as approved by the CA.  The CMR held that your findings and sentence were correct in law and fact and that no error materially prejudicial to your substantial rights was committed.  Following the completion of the post-trial appellate review process in your case, on 7 September 1984 your punitive discharge was ordered executed and you were discharged from the Marine Corps with a BCD. 

Your contention that you suffered from a mental health condition on active duty was fully and carefully considered by the Board in light of the Secretary of Defense’s 3 September 2014 memorandum, “Supplemental Guidance to MilitaryBoards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 

As part of the review process, a qualified military mental health provider (MHP) reviewed your contentions and the available records, and provided the Board an AO dated 13 September 2019.  The MHP noted that you did not submit any clinical documentation or treatment records to support a mental health diagnosis.  The MHP also noted that there is no record evidence of a mental health condition, other than a possible alcohol use disorder.  The MHP determined that your in-service marijuana use suggested a possible continuation of your pre-service drug use behavior.  The MHP concluded that there is insufficient evidence to attribute your misconduct to a mental health condition suffered during military service, aside from a possible alcohol use disorder. 

The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) a BCD was too severe for the misconduct, (b) the incidents leading to the misconduct could have been prevented with proper mental health treatment and rehabilitation, (c) you made immature mistakes while dealing with undiagnosed mental health issues, (d) that a discharge upgrade is in the interest of equity and justice, (e) that an upgraded discharge permits you to apply for VA assistance, and (f) that you received ineffective assistance of counsel (IAC) at your court-martial.  Unfortunately, the Board determined that these mitigating factors and contentions were insufficient to warrant upgrading your discharge or granting any other relief in your case. 

In accordance with the published guidance, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced, and their possible adverse impact on your service.  However, even under the liberal consideration standard, the Board concluded that there was insufficient evidence that you suffered from any type of mental health issue while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge.  Moreover, the Board observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claims, despite a request from the Board on 25 June 2019 to provide additional documentary material to support your claims.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Accordingly, under the totality of the circumstances, the Board in its review determined that there was no probable material error or injustice in your discharge, even under the liberal consideration standard. 

The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board unanimously concluded that, despite your contentions, this is not a case warranting any clemency. 

The Board also found insufficient evidence of IAC.  The Board concluded that you failed to meet your burden to show that:  (a) the defense counsel’s performance was deficient and fell below an objective standard of reasonableness, and/or (b) that there was a reasonable probability of a more favorable result had your alleged deficiencies actually occurred.  At trial, with the assistance of counsel, you voluntarily pleaded guilty to two charges before a military judge.  Before accepting your pleas of guilty, the military judge conducted a providency inquiry, during which you would have been required to state under oath that, among other things, you were satisfied with your detailed defense counsel, had had adequate time to prepare for trial, that you were pleading guilty voluntarily, and that you had actually committed the charged misconduct.  The CMR had a duty to conduct a legal and factual sufficiency review of your case regardless of whatever errors were or were not asserted/assigned by your two appellate defense counsel.  If IAC had occurred at any stage in your case, the three-judge panel on the CMR would have concluded as such and ordered the appropriate relief.  Instead, the CMR affirmed the guilty findings and sentence in your case, and did not identify any substantive, evidentiary, or procedural defects, including IAC.  Accordingly, the Board continued to find no probable material error or injustice in your court-martial conviction, sentence, or discharge. 

Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for Veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely,